Richard Spencer’s Right to Speak at Auburn

By Geoffrey R. Stone

April 18, 2017

CHICAGO — Last week, Richard B. Spencer, a white nationalist and one of the leaders of America’s so-called alt-right movement, announced that he would be giving a speech on the campus of Auburn University in Alabama. Auburn, a public university, has a policy of permitting anyone who wants to rent meeting space to do so.

Mr. Spencer is a controversial and divisive figure who has been decried as racist, anti-Semitic, un-American and hateful. Knowing that his presence would upset many members of the university community, Auburn issued a statement: “We strongly deplore his views, which run counter to those of this institution. While his event isn’t affiliated with the university, Auburn supports the constitutional right to free speech. We encourage the campus community to respond to speech they find objectionable with their own views in civil discourse and to do so with respect and inclusion.”

Several days later, though, Auburn changed its tune. “In consultation with law enforcement,” the university announced that it had decided to cancel the event because of “credible evidence that it will jeopardize the safety of students, faculty, staff and visitors.”

Given the sometimes disruptive responses to other controversial speakers on campuses recently, Auburn’s concern is certainly credible. But is that justification for canceling the speech constitutionally permissible?

Because Auburn is a public institution, its actions are governed by the First Amendment. This has consequences. In its 1995 decision in Rosenberger v. University of Virginia, for example, the Supreme Court held that the University of Virginia could not fund all student publications except those addressing religious views because such a policy violated the institution’s constitutional obligation not to discriminate against particular viewpoints. That same principle clearly applies in the Spencer situation, because Auburn routinely permits speakers who convey various points of view to speak on campus.

Auburn may defend its decision on the grounds that, unlike other speakers, Mr. Spencer’s speech could generate a violent response. Thus, the university argues, there is a reasonable justification to forbid his speech, even though other people’s are routinely allowed.

This debate has long interested the Supreme Court, which came to the conclusion in the 1960s that threats of violence cannot, except in truly extraordinary circumstances, justify government action that silences a speaker. Rather, the court has held that the government’s constitutional obligation in such circumstances is to take all reasonable steps to protect the rights of the speaker.

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Members of the National Socialist Party of America at a rally in Chicago in June of 1978.CreditDon Hogan Charles/The New York Times

The issue came to a head over controversies during the civil rights movement, when angry whites threatened violence if civil rights marches were permitted to take place. In this light, the court recognized the danger of the “heckler’s veto” — that is, the danger of allowing threats of violence by opponents of a speaker to oblige the government to silence the speaker.

The court understood that giving such power to a speaker’s opponents would encourage opponents of other speakers to make similar threats. Recognizing that this would endanger freedom of speech, the Supreme Court concluded that the government’s responsibility in these circumstances is to control those who threaten violence, rather than to sacrifice the speaker’s First Amendment rights.

A historic illustration of this principle occurred 40 years ago this month when some 30 members of the National Socialist Party of America sought to march in Skokie, Ill. The neo-Nazi marchers intended to wear military-style uniforms that included swastika armbands, and to carry a banner also bearing a swastika.

At the time, the village of Skokie, a northern suburb of Chicago, had a population of around 70,000 people, of whom about 40,000 were Jewish. Some 5,000 of these residents were Holocaust survivors.

The inhabitants of Skokie were outraged by the proposed march and sought a court order prohibiting it, arguing that it would incite an “uncontrollably” violent response and lead to serious “bloodshed.” The American Civil Liberties Union, despite criticism from many supporters, represented the First Amendment rights of the Nazis. As a young law professor at the University of Chicago, I assisted the A.C.L.U. in the case.

When the dust settled, the Illinois Supreme Court, the United States Court of Appeals and, finally, the United States Supreme Court all concluded that Skokie could not constitutionally forbid the Nazis to march. The First Amendment, the courts concluded, required the government to protect the rights of the marchers and to control and, if necessary, punish any lawbreakers. (In the event, the neo-Nazis — their rights upheld — agreed to hold a march in Chicago, rather than Skokie; the Chicago police acted to prevent any significant disruption.)

The Skokie controversy was a landmark victory for the First Amendment. It proved that the rule of law must and can prevail. Indeed, the resolution of the conflict in Skokie reaffirmed the wisdom set forth 90 years ago by Supreme Court Justice Louis Brandeis in his memorable 1927 opinion in Whitney v. California.

“Those who won our independence,” Justice Brandeis wrote, were committed to the principle “that the fitting remedy for evil counsels is good ones.” Thus, even the fact that speech is likely to result in “violence or in destruction of property is not enough to justify its suppression.” Rather, Justice Brandeis concluded, in a free society, “the deterrents ordinarily to be applied to prevent” violence and disruption “are education and punishment for violations of the law, not abridgment of free speech.”

Auburn had it right the first time.

Geoffrey R. Stone, a professor of law at the University of Chicago, is the author, most recently, of “Sex and the Constitution: Sex, Religion, and Law from America’s Origins to the Twenty-First Century.”